Lawsuit against .SE – a fundamentally important issue of law

Over the past few days, .SE has made the headlines as a result of a blog entry by our CEO in which he explains why he believes it is the wrong path to take to issue a lawsuit against a top-level domain administer – in this case .SE – for the purpose of removing a service from the internet.

Elisabeth Ekstrand.

(This is a translated blog post written byElisabeth Ekstrand,head of legal and policy of .SE)

For many, including .SE, these types of issues are interesting and important. They involve maintaining an open internet and protecting freedom of speech, at the same time as it is necessary to have effective processes to prosecute criminal activities on the internet. From our perspective, it is of course particularly interesting to find out what role the domain name administrator should have in this respect.

I would like to emphasize the fundamental importance of these issues of law and that the legal situation is ambiguous. This legal issue is just as important as when we decided to pursue the case relating to a request from the Swedish Tax Agency for us to hand over information concerning tax audits of third parties.

Why is the action being brought against .SE?

In recent years, various types of legal strategies to address the issue of breaches and copyright infringement on the internet have been attempted. It has proven difficult to prosecute these breaches and infringements, which has resulted in the formulation of new strategies. These have focused on various types of intermediaries that facilitate communication.

The prosecutor’s decision to file a lawsuit against .SE – and not the domain holders alone – is a clear sign of these new strategies.

We have been issued with a lawsuit relating to “a separate action on forfeiture, etc. under article 53 a of the Swedish Copyright Act and section 36 article 3 of the Penal Code” and we are currently working on formulating our response.

The prosecutor requested that the court forfeit the domain names and bases these demands on two different provisions governing forfeiture (section 36 article 3 of the Penal Code and article 53 a of the Swedish Copyright Act).

He does not go into any further detail on the practical implications that forfeiture at .SE would have. In layman’s terms, forfeiture means that the rights to a certain object are transferred to the ownership of the state.

Prosecutor’s reasoning

The prosecutor argues that a domain name is equivalent to “property” and an “object,” implying that a domain name can be forfeited. But is it so simple that a domain name can be considered the same as an object/property? We do not know this yet and we therefore believe that it is fundamentally important that the legal situation be clarified.

Furthermore, the prosecutor argued that forfeiture can be performed from us, since we constitute “a party to the crime.” The prosecutor contends that .SE, through its domain name operations, is promoting copyright infringement and this is sufficient so that forfeiture can be conducted from .SE.

But is it really the case that .SE’s status as a registrar means that the prosecutor can file such an action against us? After all, .SE is only one of several intermediaries that facilitate communication on the internet.

To bring clarity to the legal situation, we will naturally respond to the actions and argue our point, as the prosecutor has done in its lawsuit.

The only thing that is apparent at this point is that it is unclear what responsibility .SE has and, furthermore, what the legal standing is for a domain name. Through these judicial proceedings, we will hopefully receive an answer to these very important fundamental legal questions and hopefully the legal situation will be clarified and case law in the area will be created.

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